Bava Kamma 63b — the Talmud in English

One who makes a claim of theft ![](pamud.bmp "

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concerning a lost item,

one who finds a lost item and claims that it was stolen from him, while it is found in his possession, he

pays double payment,

because

it is stated: “

concerning every lost item about which he says.”

A. The Gemara adds further clarification of the details of the laws concerning “one who makes a claim of theft,” and explains from where they are derived.

B. There are two obligations that apply to one who lies under oath concerning a deposit that was entrusted to him:

The first: “one who makes a claim of theft,” who becomes liable for double payment, and this is derived from the verses mentioned above.

The second: “one who denies a deposit,” which is the passage of “the oath of the deposit,” as it is stated [Leviticus 5]:

“When a person sins, and commits a betrayal against the Lord, and denies to his fellow concerning a deposit, or concerning a loan, or concerning robbery, or he withholds from his fellow. Or he finds a lost item and denies it, and swears falsely concerning one of all that a person does, through which he sins. And it shall be, when he sins and bears guilt, that he shall return the robbery that he robbed, or the withholding that he withheld, or the deposit that was deposited with him, or the lost item that he found. Or concerning anything about which he swore falsely, he shall pay it in its principal [the principal sum, which is the head of the money] and add its fifth to it; to the one to whom it belongs [to the one whose principal it is] he shall give it on the day of his guilt. And he shall bring his guilt-offering to the Lord, an unblemished ram from the flock, according to your valuation, as a guilt-offering, to the kohen”—and this is called: “the guilt-offering for malappropriations.”

This passage includes everyone who falsely denies to his fellow money that he owes him, and the denial is under oath; included in this is also “one who makes a claim of theft,” when the conditions obligating him to add a fifth and bring a guilt-offering under the law of “the oath of the deposit” have been fulfilled.

C. The law of “the oath of the deposit” differs, with regard to a fifth and a guilt-offering, from the law of “one who makes a claim of theft,” with regard to double payment. For “one who makes a claim of theft” is liable for double payment only when witnesses come and say: “The man swore a false oath, and the deposit is with him.” But if he admits it himself, he is not liable, because the obligation of double payment is a penalty, and “one who admits liability for a penalty is exempt.”

Whereas with regard to the oath of the deposit, the testimony of witnesses is insufficient; an admission is required, and through it he becomes liable even when witnesses did not come. This law is derived from the statement of the verse [Numbers 5], where the passage of the oath of the deposit is repeated, and it is stated there: “When a man or woman commits any of the sins of man, to commit a betrayal against the Lord, and that soul bears guilt, they shall confess their sin that they committed, and he shall return his guilt-offering [the principal] in its principal, and add its fifth to it, and give it to the one to whom he is liable [to whom he owes it]. But if the man has no redeemer [relative] to return the guilt-offering to him [for example, if he robbed a convert, and the convert died], the guilt-offering that is returned to the Lord shall belong to the kohen [he shall pay it to the kohanim], besides the ram of atonement with which he shall make atonement for him [this is the guilt-offering for the oath of the deposit]”—thus the Torah obligated a guilt-offering only when “they shall confess” was fulfilled, meaning that he admitted; and whenever there is no guilt-offering, there is no fifth.

D. In the Mishna before us, the distinction between these obligations is explained.

We learned there

below, in the chapter “One Who Robs Wood”:

One who says to his fellow: “

Where is my deposit

that I deposited with you?” And

he said to him,

the bailee: “

Lost

your deposit.” -

The depositor then said to him: “

I adjure you

concerning your statement,” and

he said,

the bailee: “

Amen,” and this is as though he swore that his deposit had been lost -

This is considered as though he had sworn that his deposit was lost. -

and witnesses testify against him that he consumed it,

but he himself did not admit that he had sworn falsely, he

pays only the principal,

for although he denies a deposit under oath, he does not become liable to pay “principal, fifth, and guilt-offering” from the passage of “the oath of the deposit,” because the Torah obligated him to add a fifth and bring a guilt-offering only when he admitted.

But if

he admitted on his own authority,

he

pays the principal, fifth, and guilt-offering

under the law of “the oath of the deposit.”

But if he said to him: “

Where is my deposit?”

and

he said to him: “

It was stolen,” “

I adjure you,” and

he said: “

Amen,”

then his law is different, because he is “one who makes a claim of theft,” whom the Torah obligated to pay double payment, and this is his law:

And witnesses testify against him that he stole it,

he

pays double payment

according to the law of “one who makes a claim of theft,” and he does not pay under the law of “the oath of the deposit,” because he did not admit on his own.

But if

he admitted on his own,

he

pays the principal, fifth, and guilt-offering

under the law of “the oath of the deposit,” but he is not liable for double payment, because “one who admits liability for a penalty is exempt.”

In any event, it teaches

in this Mishna:

A.

Regarding one who makes a claim of theft, that he pays double payment.

B.

But regarding one who makes a claim that it was lost, he does not pay double payment,

and therefore the Mishna exempted him from double payment even when witnesses came.

C.

And even one who makes a claim of theft—

it is under oath that he pays double payment, but without an oath he does not pay double payment.

And all this,

from where are these words,

from where is it required?

For the Sages taught:

It is written: “When a man gives to his fellow money or vessels to guard, and it is stolen from the man’s house, if the thief is found, he shall pay double. If the thief is not found, the master of the house shall be brought to the judges, whether he did not send his hand into the work of his fellow. For every matter of transgression, concerning an ox, concerning a donkey, concerning a sheep, concerning a garment, concerning every lost item, about which he says that this is it, the matter of both of them shall come to the judges; whomever the judges condemn shall pay double to his fellow”:

“

If the thief is found”

the verse is speaking of one who makes a claim of theft,

that is: if it is found that he stole it, he shall pay double.

You say that the verse is speaking of one who makes a claim of theft; or is it only concerning the thief himself

and this is what the Torah said: if the thief is found, as the bailee indeed claimed, then that thief shall pay double -

I do not say so, because:

When

the verse

says: “

If the thief is not found” ... “and he shall be brought ... about which he says that this is it ... he shall pay double to his fellow,”

it follows that this passage comes to teach the law of “one who makes a claim of theft,” and

you must say

that the entire passage

speaks of one who makes a claim of theft

to obligate him in double payment,

the verse speaks—for this is a principle in our possession: “one came and taught concerning the other.” And

in accordance with the general principle: "one verse comes and teaches about the other." And

another beraita was taught,

and we learned another beraita that disagrees with the preceding beraita: “

If the thief is found

he shall pay double,”

the verse is speaking of the thief himself.

You say that it concerns the thief himself, or is it only concerning one who makes a claim of theft?

I do not say so, because:

When it says: “

If the thief is not found,”

and the Torah obligates him in double payment,

one who makes a claim of theft

who is liable for double payment has already

been stated; what, then, do I establish

“

If the thief is found

he shall pay double”?

The verse is speaking of the thief himself,

for if not, why would it write and mention twice the obligation of double payment concerning one who makes a claim of theft?

Everyone—

both the tanna in the first beraita and the tanna in the second beraita—

at least: “

If the thief is not found”

is written concerning one who makes a claim of theft!

What is the indication,

how is it indicated from here that one who makes a claim of theft pays double!?

He said,

he explained,

Rava:

The verse says as follows:

If “the thief” is not found, that is, if he is not found

"the thief," that is, if it is not found

as he said:

“The deposit was stolen,”

but he himself stole it,

then

he shall pay double.

We have therefore learned that “one who makes a claim of theft” pays double.

And from where

does he become liable for double payment only under oath?

For it was taught: “

The master of the house shall be brought to the judges”

for an oath,

and to teach: a gratuitous bailee [of whom the passage speaks] who claims “it was stolen” is exempt through an oath; and to teach that only under oath does he become liable for double payment.

You say

that “shall be brought” means

for an oath, or is it only

that “shall be brought” means

for judgment,

in order to pay, and to tell you: a gratuitous bailee who makes the claim “it was stolen” is liable to pay the principal to the owners?

I do not say so, because through a gezera shava I can learn that this bringing is for an oath, for:

It is stated “

sending of the hand”

below

in the passage concerning a paid bailee, as it is written: “The oath of the Lord shall be between them, whether he did not send his hand into the work of his fellow” -

And it is stated “

sending of the hand”

above—

in our passage, which is the passage concerning a gratuitous bailee—as it is written: “And the master of the house shall be brought to the judges, whether he did not send his hand into the work of his fellow.”

Just as there—

regarding a paid bailee—

for an oath,

for the Torah said: “The oath of the Lord shall be between them”,

so here—

regarding a gratuitous bailee—this bringing is

for an oath

itself.

And we challenge this:

Granted, according to the one who says: one

of the verses is concerned

with a thief, and one

of them

with one who makes a claim of theft:

This is why two verses are written [that is why two verses were written stating “he shall pay double”].

But according to the one who says: both [the two verses obligating double payment] deal

But according to the one who says: both [the two verses obligating double payment] are concerned

with one who makes a claim of theft,

if so,

why do I need two verses [two verses stating “he shall pay double”]

two verses stating that “he shall pay double”]

!?

They said,

the members of the academy:

One

of the verses comes

to exclude

one who claims

that it was lost, and swears, and it is found in his possession, who does not pay double.

takes an oath, and the item is found in his possession: he does not pay double.

We have thus learned a source that “one who makes a claim that it was lost” does not pay double payment.

And

we challenge:

according to the one who says: one concerns a thief and one concerns one who makes a claim of theft, and no verse is superfluous, if so,

if so,

from where does he derive the exclusion of a claim that it was lost!?

And we answer:

From

the superfluity of the verse

“the thief, the thief.”

For it could have said “if a thief is not found,” but it said “if the thief is not found,” which indicates the particular thief, and it comes to teach that he is liable for double payment only when making a claim of theft, but not when making a claim that it was lost.

And

we challenge:

according to the one who says: both concern one who makes a claim of

theft,

and it follows

that

already

the verse excluded for him

the

one who makes a claim that it was lost from one of the superfluous verses, if so, “

the thief, the thief”

what does he expound from it!?

He can say to you: It is needed for that which Rabbi Hiyya bar Abba said in the name of Rabbi Yohanan!

For Rabbi Hiyya bar Abba said in the name of Rabbi Yohanan: One who makes a claim of theft concerning a deposit,

he

pays double payment,

and if he

slaughters or sells

the deposit afterward, he

pays fourfold or fivefold payment;

and this law is derived from “the thief, the thief,” which is superfluous, in order to teach that his law is like that of the thief himself.

And we explain:

according to the one who says: one concerns a thief and one concerns one who makes a claim of theft, this “

the thief, the thief”

he brought out [he brought it out in order to teach]

he uses it to teach]

to exclude a claim that it was lost—

if so,

Rabbi Hiyya bar Abba—

to obligate one for slaughtering and selling in the case of “one who makes a claim of theft”—

from where does he derive it!?

He can say to you: It is an analogy,

for the Torah likened a thief to “one who makes a claim of theft,” since the first verse concerns a thief and the verse adjacent to it concerns “one who makes a claim of theft,” and they are learned from one another: just as a thief pays fourfold or fivefold payment if he slaughters his theft, so the bailee becomes liable for fourfold or fivefold payment for his deposit if he slaughters it and sells it after making a claim of theft concerning it—

And

behold,

one does not refute [challenge]

raise an objection]

an analogy,

and you cannot refute it by saying: What is true of a thief is that he becomes liable even without an oath; can you say the same concerning “one who makes a claim of theft,” who is liable only under an oath?

Granted, according to the one who says: one

of the verses obligating double payment concerns

the thief

himself,

and one

of them concerns

“

one who makes a claim of theft”—

this is

proper,

for we have a source for both of these obligations of double payment!

But according to the one who says: both concern “

one who makes a claim of theft,”

if so,

the thief himself,

who pays double,

from where does he derive it [from where is he learned]?

from where is it learned]?

And if you would say, let him be derived by a kal va-chomer from “

one who makes a claim of theft” [perhaps you would say that it is derived by a kal va-chomer]—

perhaps it is learned by a kal va-chomer]—

This cannot be said, for “

it is sufficient for what comes from the law [it is enough for what is learned through a kal va-chomer]

it is sufficient for what is learned by a kal va-chomer]

to be like what is being learned [so that it should not be more stringent than the teacher],” and we must say:

it must not be more stringent than the source].” We must therefore say:

Just as there—

concerning one who makes a claim of theft—the Torah obligated him only

under an oath, so here,

concerning the thief himself, let us obligate him in double payment only

under an oath.

And we answer:

A third passage concerning double payment [and it is the first in the Torah] was stated [Exodus 21:37]: “If a man steals an ox or a sheep and slaughters it or sells it. If the thief is found while tunneling. If the sun has risen over him. If the theft is surely found in his possession [which he did not sell], from an ox to a donkey to a sheep alive [which he did not slaughter], he shall pay double.”

He derives it

for the law of the thief himself, that he pays double,

from the tanna of the academy of Hezekiah!

That is, according to the tanna who says that both verses concern “one who makes a claim of theft,” the thief himself is learned from the passage “if the theft is surely found,” which indeed concerns the thief himself. However, from the explicit verse in that passage we would know only that one who steals animals pays double; and from the exposition of the tanna of the academy of Hezekiah on that passage, we know that anyone who steals movable property whose substance has monetary value is liable for it with double payment when he steals it.

For the tanna of the academy of Hezekiah taught:

Let the verse say

in the passage “if the theft is surely found”:

an ox and theft,

and everything would be included.

That is, it would have sufficed if it had been written “if the theft is surely found in his possession,” which is a general statement, and then it would return and make a general statement according to the general statement, and specify only “ox”; and we would know from the principle of “generalization, specification, and generalization” that every theft resembling the specification—that it is movable property and its substance has monetary value—the thief is liable for it with double payment. Why did the Torah need to specify further “donkey and sheep”?

specifying only “ox.” We would then know, through the principle of “generalization, specification, and generalization,” that every theft resembling the specification—something movable and having intrinsic monetary value—renders the thief liable to pay double. Why, then, did the Torah need to specify further “donkey and sheep”?

If

the verse had said

so,

then

I would have said: Just as the specification—

an ox—

is explicit

as being

fit for the altar, so everything

stolen that is

fit for the altar

would make the thief liable for it with double payment, and I would not say that every movable item whose substance has monetary value makes him liable for double payment. But now that “sheep” is also stated in the Torah, I learn that even something that is not fit for the altar makes him liable; how? [But surely a sheep is also fit for the altar]:

For what

do you have to bring

and include by the method of a generalization, a specification, and a generalization [if “sheep” had not been stated explicitly]? It would be only

“sheep”

and those similar to it that are brought in relation to the altar—